Sir Mario Owens, Robert Ray, and Nathan Dunlap. These are the names of the three men that now sit on death row in Colorado. But as we now know the man who gunned down 12 persons at a Colorado movie theater and wounded dozens of others won't be the fourth person on the state's death row. James Holmes's absence from death row doesn't simply present yet another chance to discourse on ethics, morality or the propriety of a death sentence. It's about the farce of the death penalty in terms of who gets it and who doesn't. The three men who sit on the state's death row are African-American. And that's in a state where African-Americans make up less than 5 percent of the state's population
One of them was convicted of killing four persons. The other was convicted of two murders. And the other was given the death penalty for hiring him to commit the dual murder. They deserve the harshest penalty for their crimes and that means a life sentence without parole. And to be clear, Holmes deserves the exact same fate. So how to explain how a major mass killer gets life and the other three get death? The explanation strikes to the farce of the application of the death penalty. In fact, the seeming arbitrary, random, inconsistent, and patch work application of the death penalty has soured even the most enthusiastic the death penalty advocates on its effectiveness.
Now back to Holmes. He is a near textbook example of the problem. His high scorecard of victims didn't necessarily make him anymore a prime candidate for the death penalty than if he was accused of killing one person. The list of those who have committed multiple murders but didn't get the death penalty is endless. It includes mafia hit men, wealthy celebrities, businessmen and athletes. There are roughly 9 to 10,000-plus homicides in America on average; only a few hundred of those convicted of murder get the death penalty.
Legal experts and philosophers fiercely debate whether one life is more valuable than another, and there's tacit recognition in American law, public policy and custom that some lives are, in fact, more valuable than others. Holmes's victims were a cross section of ages, genders, and occupations and most hail from solid working and middle class families. On the surface, it made it more likely that he would have gotten the death penalty.
But he didn't and here's where the farce of the death penalty again rams itself into play. The flip side of that is that if a killer's victims are poor, young, minorities, and from inner city, neighborhoods, the likelihood of getting the death penalty is diminished. Amore than a decade ago in Washington, the so-called Green River Serial Killer, Gary Ridgway was convicted of nearly 50 heinous and grotesque rapes and murders during a span of years. The victims were poor, female, and many were runaways, drug users or prostitutes. Their families were outraged at the snail's pace of justice in the case. Yet, Ridgway was allowed to cop a plea and escaped execution. Polls at the time found that most Americans were appalled by the deal and wanted Ridgway executed.
There are countless examples where states have executed men and women convicted of a single killing while those that committed multiple killings escaped the executioner's gurney and received life sentences. The Supreme Court rendered moot the debate over the proportionality of capital punishment when it ruled in 1984 that the Constitution does not require the punishment to always fit the heinousness of the crime. The Court did urge the states to prevent "excessive" or "disproportionate" sentencing in death penalty cases.
Though not legally obliged, most states with capital punishment have set "mitigating circumstances"--age, mental capacity, abuse (sexual, drug and alcohol)--for judges and juries to consider in determining whether a death sentence is appropriate. Many studies have found that many of the death row prisoners have either been beaten, brutalized, sexually assaulted or are mentally retarded or sub-literate.
The colossal frustrations, doubts, and anger over who gets the death penalty and who doesn't along with the astronomical cost of it has fueled the clamor to either speed up the execution process, or scrap the death penalty completely. More states have done just that. The Colorado state legislature came close to abolishing the death penalty, but still keeps it on the books. It has used it in only one case during the past three decades.
Holmes's defense team pulled out all stops in depicting him as deranged, tormented, and fantasy obsessed. Their effort was rewarded with his death sentence reprieve. And that reprieve again underscores the sore point of why some murderers, even a mass murderer, will still be breathing decades later, while another killer sentenced to death won't. That's the farce of the death penalty.
Earl Ofari Hutchinson is an author and political analyst. He is a frequent MSNBC contributor. He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on. He is the host of the weekly Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the Pacifica Network.